On appeal from the Appellate Division of the Superior Court whose opinion is reported in 6 N.J. Super. 231.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Burling and Ackerson. For affirmance -- Justices Case and Oliphant. The opinion of the court was delivered by Ackerson, J.
[5 NJ Page 163] The plaintiff, Bessie Grobart, instituted the present action in the Superior Court, Law Division, against the defendants (her brothers and sisters-in-law) by complaint filed October 2, 1948, in which it is alleged that from June 9, 1933, to March 30, 1948, inclusive, the defendants "did
wickedly conspire with malice to injure the plaintiff in her marital relations with her husband Louis Grobart to whom she was married on the 20th day of December, 1925, and as a result of said conspiracy did the following acts," which may be tersely summarized as follows: (a) deprived plaintiff of certain rights in her husband's real and personal property by means of fraud and deceit; (b) prevented her from obtaining maintenance from her husband by a suit in the Court of Chancery which she could have done if defendants had not conspired to prevent it; (c) forced her to compromise with the City of Paterson certain claims she had as the wife of Louis Grobart for a sum much less than the true value thereof; (d) induced plaintiff's husband to bring a suit for divorce for adultery, well knowing the charges to be untrue, which suit resulted in her favor; (e) compelled plaintiff to obtain a divorce from her husband on the ground of desertion which she would not have done except for defendants' malicious conduct; (f) forced her to spend $10,000 to defend herself on a false charge of adultery brought against her by her husband because of the defendants' conspiracy to that end -- indicating malicious prosecution for the crime of adultery, and (g) by reason of the foregoing malicious acts plaintiff's health, good name and reputation have been impaired, -- suggesting elements of libel and slander. The foregoing specifications of alleged wrongs are set forth in separate paragraphs of the complaint.
The trial judge, on motion, struck the complaint as legally insufficient on the ground that the gravamen of the action attempted to be pleaded was alienation of affections and therefore barred by the statute, R.S. 2:39A-1 et seq. (P.L. 1935, c. 279, p. 896), known as the "Heart Balm Act." The trial court also denied plaintiff's request to amend the complaint to state each of the above specified wrongs in separate counts on the ground that it would be against the "strong public policy" expressed in the aforesaid statute.
The Appellate Division of the Superior Court affirmed the judgment of the lower court and an appeal was taken here
as a matter of right because of the constitutional question hereinafter referred to. Art. VII, Sec. V, par. 1(a); Rule 1:2-1.
Plaintiff insists that the complaint is not grounded in alienation of affections, but rests upon the theory of a conspiracy to deprive her of and injure her in certain property rights, i.e., loss of dower and choses in action, and loss and injury by fraud, malicious prosecution, libel, slander, etc., as distinguished from the loss of consortium which is the basis of an action for alienation of affections. In other words it is urged that the court failed to distinguish between an action to protect the first class of rights and one for alienation of affections. It is further claimed that if the "Heart Balm Act" is construed to prohibit actions of the former class, then it is unconstitutional in that it deprives plaintiff of guaranteed property rights without due process of law.
In our view, however, it is unnecessary to consider the constitutional question for we believe that the subject matter of the complaint, in large part at least, does not involve the "Heart Balm Act," and, if properly pleaded, embraces causes of action which are beyond the interdiction of that statute.
The causes of action abolished by this statute are enumerated in section 1 thereof (R.S. 2:39A-1) as follows:
"The rights of action formerly existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are abolished from and after June twenty-seventh, one thousand nine hundred and thirty-five."
The gist or gravamen of the action for alienation of affections is the loss of consortium by which term is meant loss of the marital affections, comfort, society, assistance and services of a spouse who has been wrongfully enticed away and the damages recoverable are peculiarly referable thereto. The action is one in tort and the substance of this remedy is not the destruction of affection per se but loss of the conjugal society with its mutual rights and obligations directly ...